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Cyrus Dugger

Parents Don’t Need Lawyer in Ed Cases

From the Washington Post:

Parents Don't Need Lawyer in Ed Cases

By MARK SHERMAN
The Associated Press
Monday, May 21, 2007; 11:49 AM

WASHINGTON -- Parents need not hire a lawyer to sue public school districts over their children's special education needs, the Supreme Court ruled Monday.

The decision came in the case of an autistic boy from Ohio, whose parents argued they were effectively denied access to the courts because they could not afford a lawyer.

Federal law gives every child the right to a free appropriate public education, which in the case of special needs children sometimes means enrollment in a private facility. (keep reading)

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Posted at 9:40 AM, May 22, 2007 in
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Comments

It clearly is right to allow parents and other civil claimants to litigate without attorneys. But no one should be fooled into thinking that lawsuits pitting pro se parties against experienced attorneys are fair contests. The betting money would be on the represented party every time.


An important part of the story in this case concerns the remarkably high costs the plaintiffs incurred before even getting to trial. It should be possible to litigate a case like theirs in a small claims court after spending a few thousand dollars. Our misguided desire for the impossible goal of complete accuracy in claim resolution for defendants at trial has created a monstrous situation in which plaintiffs with meritorious complaints must incur staggering costs and wait years for justice. We'd be better off with rougher justice that could be obtained more cheaply and more quickly.

Posted by: Charles Silver | May 22, 2007 10:10 AM

I find this challenging. In all instances where the law provides for ordinary citizens to protect their legal rights, the body of law governing hasn't gotten so complex by the lawyers who do enter the system and those who can afford lawyers that the practical reality of saying an individual can represent themselves of the rights of (fill in the blank) is rendered meaningless. Case in point: I was asked to represen the Russian immigrant mother of an autistic child who was part of an affluent community. She was a superb mother who also investigated the roots of autism in food allergans and more. Her child was remarkably advanced in other aspects because of her committment to her child. However, when she requested he be placed in a 'more expensive' private school to attend his needs because they admittedly had no trained professionals capable of educating him appropriately they used their mandatory reporting powers to put her in the Department of Children and Protective Services. Now she is being investigated for being a poor parent and a potential threat to her child. Had she not engaged a lawyer (which she could ill-afford) she never would have been able to learn the school had a paid for a psychological report which indicated she was an excellent mother, the child had made remarkable strides,etc...but which they had blacked out all refernces to before submitting to DCF. Now, you tell me, if she had not engaged a lawyer...she would have been interminably locked into the DCF system, fighting her own battle rather than the school system doing what was right for their son and mandated by law. Ultimately, when they were confronted with the blacked out document they immediately placed the child in the right school.
This happens in Worker's Compensation as well. A system meant for self-representation has gotten so fierce by employers who can afford lawyers that an individual can no longer enter it even though he is entitled to.

Posted by: Susan Cartier Liebel | May 22, 2007 1:03 PM

Superficially, this decision rebuts the rent seeking theory predicting most appellate decisions may be predicted by their increase of lawyer employment. Rent seeking is the Grand Unifying Field Theory of Appellate Decisions. Winkelman seems to allow the owner to repair his chattel, the law, unassisted by a land pirate that has criminally converted it.

But:

1) If any parent may sue, then it generates a lot of jobs for defense lawyers.

2) The parents get slaughtered on procedure.

3) They get the message, we need a lawyer. They hire a lawyer and have yet another claim, done right this time.

This decision is a loss leader/stalking horse and supports the Rent Seeking theory.

Posted by: Supremacy Claus | May 23, 2007 2:24 PM